Occasional Paper 9 Proliferation Security Initiative: Origins and Evolution Susan J. Koch Center for the Study of Weapons of Mass Destruction National Defense University DR. JOHN F. REICHART Director DR. W. SETH CARUS Deputy Director, Distinguished Research Fellow Since its inception in 1994, the Center for the Study of Weapons of Mass Destruction (WMD Center) has been at the forefront of research on the implications of weapons of mass destruction for U.S. security. Originally focusing on threats to the military, the WMD Center now also applies its expertise and body of research to the challenges of homeland security. The center’s mandate includes research, education, and outreach. Research focuses on understanding the security challenges posed by WMD and on fashioning effective responses thereto. The Chairman of the Joint Chiefs of Staff has designated the center as the focal point for WMD education in the joint professional military education system. Education programs, including its courses on countering WMD and consequence management, enhance awareness in the next generation of military and civilian leaders of the WMD threat as it relates to defense and homeland security policy, programs, technology, and operations. As a part of its broad outreach efforts, the WMD Center hosts annual symposia on key issues bringing together leaders and experts from the government and private sectors. Visit the center online at www.ndu.edu/WMDCenter/. Proliferation Security Initiative: Origins and Evolution Susan J. Koch Center for the Study of Weapons of Mass Destruction Occasional Paper, No. 9 National Defense University Press Washington, D.C. June 2012 Opinions, conclusions, and recommendations expressed or implied within are solely those of the contributors and do not necessarily represent the views of the Defense Department or any other agency of the Federal Government. Cleared for public release; distribution unlimited. Portions of this work may be quoted or reprinted without permis- sion, provided that a standard source credit line is included. NDU Press would appreciate a courtesy copy of reprints or reviews. Insofar as possible, the information in this paper is current as of September 2011. Much of the research and analysis on which this paper draws was originally done by the author for a publication by the National Institute for Public Policy, The Proliferation Security Initiative: A Model for Future International Collaboration (Fairfax, VA: National Institute Press, August 2009). The research for this paper included interviews and written communications with current or former U.S. Government officials who are serving or who served on the White House National Security Council staff, in the Department of State, Department of Defense, and Intelligence Community. Most of those sources are identified by name; a few, who spoke on a background basis, are identified only by institutional affiliation. First printing, June 2012 Contents Failure as a Policy Catalyst ................................... 1 From Failure to Proposal .................................... 4 From Krakow to Paris: Creation of the Proliferation Security Initiative ......................................... 10 Operation of the Proliferation Security Initiative ............... 19 Conclusion .............................................. 28 Appendix. States Endorsing the Proliferation Security Initiative Statement of Interdiction Principles as of September 10, 2010 .... 31 Notes ................................................... 32 About the Author ........................................ 39 Failure as a Policy Catalyst On December 9, 2002, the United States and Spanish navies cooperated to interdict a North Korean vessel, the So San, in the Arabian Sea.1 The operation initially appeared to be an unqualified success, a textbook example of interdiction to prevent proliferation of weapons of mass destruction (WMD), related materi- als, or delivery systems. According to press reports, the United States began track- ing the vessel when it first left North Korea, believing that it was carrying a cargo related to Scud ballistic missiles. The So San flew no flag, making it a stateless vessel under international law, subject to interception and boarding by warships on the high seas.2 The United States asked the Spanish navy to stop and search the So San when the ship reached the patrol area of Combined Task Force (CTF) 150, then under Spanish command. The mission of CTF 150 was “to promote maritime security in order to counter terrorist acts and related illegal activities” in the Gulf of Aden, Gulf of Oman, Red Sea, and Indian Ocean.3 Thus, the United States proposed—and Spain agreed—to use a tool developed to combat global terrorism in a counterproliferation mission. After the Spanish naval ship Navarra intercepted the So San, the vessel’s cap- tain refused to halt, and Spanish naval personnel forcibly boarded it by helicopter. U.S. naval personnel joined the Spanish on board quickly thereafter. The So San’s manifest claimed that it was carrying a cargo of cement. That statement, while true, was incomplete. Hidden in the ship’s hold under many bags of cement was a proliferation cargo comprised of 15 complete Scud missiles, 15 conventional war- heads, 23 containers of nitric acid missile fuel, and 85 barrels of initially unidenti- fied chemicals, later described as oxidizer for the missile fuel. At Spain’s request, the U.S. Navy took control of the vessel and its cargo. Almost immediately, the So San interdiction turned from success to embar- rassing failure. On December 11, the United States released the vessel just 2 days after its seizure, and the ship resumed passage to its destination—this time with- out interruption. The government of Yemen had agreed in late summer 2002 not to purchase any more Scud missiles from North Korea, and the Yemeni embassy in Washington initially denied that the So San shipment was destined for its country. 1 CSWMD Occasional Paper 9 However, after news of the interdiction leaked to the media, senior Yemeni of- ficials reacted differently and vehemently. On December 10, the Yemeni president complained directly to Vice President Richard B. Cheney, and the foreign minister to Secretary of State Colin Powell, claiming that the missiles, warheads, and fuel were Yemen’s property and demanding that the So San be allowed to proceed. The United States acceded. Former senior U.S. Government officials directly involved in the So San events believe that the government of Yemen would have quietly accepted the interdiction had it remained secret but that the publicity about both the shipment and its destination made it politically untenable for the Yemenis to acquiesce to the seizure of their property..4 In announcing the So San release, White House press secretary Ari Fleischer made a point of mentioning that “Yemen is a partner of the United States in the war on terrorism.” Fleischer also argued that there was a lack of international legal authority for the United States to retain the So San and its cargo, and stressed that the George W. Bush administration would work to redress that problem: There is no provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea. While there is authority to stop and search, in this instance there is no clear author- ity to seize the shipment of Scud missiles from North Korea to Yemen. And therefore, the merchant vessel is being released. There are many agreements around the world in international trea- ty law which have been agreed to, focused on nuclear proliferation, on biological proliferation, on chemical weapons proliferation. One thing that does come out of this that the United States thinks needs to be looked at by the world is that there are less stringent agree- ments on the international treaty level dealing with proliferation of missiles. One thing that this does underscore is the need to take a look—and we will do so, with friends and others around the 2 Proliferation Security Initiative world—in a diplomatic sense about whether or not the international regimes that deal with missile proliferation need a second look.5 Legal scholars disagree about whether the United States and/or Spain had authority to retain the So San and its cargo. Some take a restrictive view, arguing that in this case, only North Korea could have taken action against the ship. For example, Craig H. Allen states that “any enforcement action would ultimately have to be based on a violation of the enforcing state’s municipal laws. [T]he only states that will likely have applicable laws under such circumstances are the vessel’s flag state and the state from which the illicit cargo was exported. Neither Spain nor the United States fell within those cat- egories.”6 Neither did Yemen. Others argue that the issue was worth pursuing in U.S. courts, on the grounds that the Scuds may ultimately have come under the control of al Qaeda, and that the United States had the right to confiscate material destined for an adversary in the war on terror.7 Despite those dif- ferent views, most legal scholars appear to agree with Fleischer’s statements: because Yemen was not a hostile power and credibly claimed ownership of the missiles, the United States had no legal basis to retain the So San and its cargo over Yemeni objections. In any event, former senior U.S. Government officials involved in the So San events maintain that legal considerations had little impact on the release— that it was solely a political decision. They argue that the Bush administration placed great priority at the time on cultivating and retaining Middle Eastern state support against terrorism, and would forgive much to that end. Robert G. Joseph, former National Security Council Senior Director for Proliferation Strategy, speculates that Fleischer explained the release on legal grounds to un- derscore that the President would follow a new path to prevent such problems in the future.8 In any case, it appears that the administration was not interested in finding appropriate legal grounds to challenge the Yemeni government.